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1. Bughartz v.

2. Pretty v. UK

Facts: the applicant was dying of a neuron disease. She was paralyzed but could make
decisions. She wanted to die to be spared of suffering and indignity but could not do it by
herself. She thus wanted her husband to help her commit suicide. However, it was a crime
to assist another to commit suicide under the British laws and her request to guarantee her
husband freedom from prosecution if he helped her was refused.
Complaint: The applicant claimed that the U.K. violated Article 3 (prohibition of
inhuman or degrading treatment or punishment), Article 2 (right to life), Article 8 (right
to respect for private life), Article 9 (freedom of conscience) and Article 14 (prohibition
of discrimination)
Holding: the ECHR found no violation of article 2, 3, 8, 9 and 14
Reasoning: Article 2 1 enjoined States to refrain from the unlawful taking of life and
to take appropriate steps to safeguard lives. Article 2 could not be interpreted as
conferring a right to die so there was no violation of article 2. Moreover, as article 3 was
construed in conjunction with Article 2 there was no violation of article 3 either.
3. Piandiong v. Philippines
4. Kosiek v. Germany
5. Johnston v. Ireland
References: [1986] ECHR 17, 9697/82, [1986] 9 EHRR 203,
Links: Bailii, ECHR, Bailii
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected
(victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8;
Pecuniary damage claim rejected; Non-pecuniary damage finding of violation
sufficient; Costs and expenses award Convention proceedings
The applicants were an unmarried couple who could not marry, and so legitimate
their daughter, the third applicant, because the Irish Constitution did not permit
divorce. They relied on article 14 in conjunction with article 8, arguing that they had
been discriminated against on grounds of their limited financial means, since (had
they been better off) they could have obtained a divorce by the expedient of a spell
of residence outside the Republic.
Held: The complaint was rejected in short measure: Article 14 safeguards persons
who are placed in analogous situations against discriminatory differences of
treatment in the exercise of the rights and freedoms recognised by the Convention.
The court notes that under the general Irish rules of private international law foreign
divorces will be recognised in Ireland only if they have been obtained by persons
domiciled abroad. It does not find it to have been established that these rules are
departed from in practice. In its view, the situations of such persons and of the first
and second applicants cannot be regarded as analogous.
6. Germany v. Denmark
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle(A-B and C-D). An agreement on further prolongation of the
boundary proved difficult because Denmark and Netherlands wished this prolongation
to take place based on the equidistance principle (B-E and D-E) where as Germany

was of the view that, together, these two boundaries would produce an inequitable
result for her. Germany stated that due to its concave coastline, such a line would
result in her loosing out on her share of the continental shelf based on proportionality
to the length of its North Sea coastline. The Court had to decide the principles and
rules of international law applicable to this delimitation. In doing so, the court had to
decide if the principles espoused by the parties were binding on the parties either
through treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention, either as a customary
international law rule or on the basis of the Geneva Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into customary law and was
is not obligatory for the delimitation of the areas in the North Sea related to the
present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the
parties have agreed on a method for delimitation or unless special circumstances
exist, the equidistance method would apply (see Article 6). Germany has signed but
not ratified the Geneva Convention, while Netherlands and Denmark are parties to
the Convention. The latter two States argue that while Germany is not a party to the
Convention (not having ratified it), she is still bound by Article 6 of the Convention
(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has
manifested its acceptance of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf areas
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing,
in such a manner as to cause other States, and in particular Denmark and the
Netherlands, to rely on the attitude thus taken up (the latter is called the principle
of estoppel).
2. The Court rejected the first argument. It stated that only a very definite very
consistent course of conduct on the part of a State would allow the court to presume
that a State had somehow become bound by a treaty (by a means other than in a
formal manner: i.e. ratification) when the State was at all times fully able and
entitled to accept the treaty commitments in a formal manner. The Court held that
Germany had not unilaterally assumed obligations under the Convention. The court
also took notice of the fact that even if Germany ratified the treaty, she had the
option of entering into a reservation on Article 6 following which that particular article
would no longer be applicable to Germany (i.e. even if one were to assume that
Germany had intended to become a party to the Convention, it does not presuppose
that it would have also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came
into force in 1980, discusses more fully the obligations of third States to treaties. It
clearly stipulates that an obligation arises for a third State from a provision of a
treaty only if (1) the parties to the treaty intend the provision to create this
obligation for the third States; and (2) the third State expressly accepts that
obligation in writing (A. 35 of the VCLT). The VCLT was not in force when the ICJ
deliberated on this case. However, as seen above, the ICJs position was consistent
the VCLT. (See the relevant provisions of the Vienna Convention on the Law of

4. The court held that the existence of a situation of estoppel would have allowed
Article 6 to become binding on Germany but held that Germanys action did not
support an argument for estoppel. The court also held that the mere fact that
Germany may not have specifically objected to the equidistance principle as
contained in Article 6 is not sufficient to state that the principle is now binding upon
5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance
special circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary international
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of
general international law on the subject of continental shelf delimitation and existed
independently of the Convention. Therefore, they argued, Germany is bound by it by
way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained in
Article 6 as it stood when the Convention was being drawn up (2) and after the latter
came into force.
What was the customary law status of Article 6 at the time of drafting the
8. The court held the principle of equidistance, as contained in Article 6, did not form
a part of existing or emerging customary international law at the time of drafting the
Convention. The Court supported this finding based on (1) the hesitation expressed
by the drafters of the Convention International Law Commission on the inclusion
of Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under
the Convention (Article 12). The court held:
Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying
or acceding for, speaking generally, it is a characteristic of purely conventional rules
and obligations that, in regard to them, some faculty of making unilateral
reservations may, within certain limits, be admitted; whereas this cannot be so in the
case of general or customary law rules and obligations which, by their very nature,
must have equal force for all members of the international community, and cannot
therefore be the subject of any right of unilateral exclusion exercisable at will by any
one of them in its own favor. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of reservation
under Article 12, were not regarded as declaratory of previously existing or emergent
rules of law (see para 65 for a counter argument and the courts careful
Did the provisions in Article 6 on the equidistance principle attain the customary law
status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force either due the
convention itself (i.e., if enough States had ratified the Convention in a manner to
fulfil the criteria specified below), or because of subsequent State practice (i.e. even
if adequate number of States had not ratified the Convention one could find sufficient
State practice to meet the criteria below). The court held that Article 6 of the
Convention had not attained a customary law status (compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).

10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including States
whose interests were specially affected (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e.
opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the
formation of a customary law.